Second Circuit Requires Government to Notify Affected Parties Prior to Visa Petition Revocation

In a breakthrough decision issued at the end of last year, the U.S. Court of Appeals for the Second Circuit, which sits in New York City, ruled that U.S. Citizenship and Immigration Services (USCIS) must provide notice of its intent to revoke an immigrant visa petition to those who actually will be affected by the revocation. In the context of an employment-based visa petition, this includes providing notice to the employee who moved to a new job (i.e., “ported”) or the new employer. This decision is an important step toward ensuring a fair process for employers and employees, and it is crucial that USCIS implement the decision nationwide.

In the particular case at issue, Mantena v. Johnson, the employee had submitted an adjustment of status application based on an approved visa petition. She subsequently moved to a new job with a different employer, as permitted under the immigration laws. USCIS decided to revoke the underlying visa petition approval, but it sent notice of its intent to do so only to the original employer, who may not have received it and by that time had no interest in the employee. Neither the employee nor her new employer learned of the revocation until much later, when USCIS denied her adjustment application because the visa petition had been revoked. USCIS refused the employee’s attempts to reopen the visa revocation decision.

The employee filed a lawsuit, challenging the government’s failure to give the notice. The lower court dismissed the case, and the employee appealed. The appeals court reversed. Its decision emphasized that this case “illustrates the importance of notifying affected parties of material changes in their proceedings [] and of giving them an opportunity to respond”—particularly in immigration proceedings where there is a “multistep administrative process.”

The court specifically rejected USCIS’ argument that, under the regulations, a beneficiary is not entitled to notice and is not considered an “affected party” in a visa petition proceeding. Instead, the court determined that these regulations, which pre-date the statutory “porting” provision, must be read to require notice to the “real parties in interest.” The court sent the case back to the lower court to determine which affected party — the beneficiary who ported or the new employer — is entitled to notice.

The American Immigration Council and the American Immigration Lawyers Association filed an amicus (friend-of-the-court) brief, and the Court invited the organizations’ participation in oral argument. Leslie Dellon, the Council’s Business Litigation Fellow, who appeared for amici said, “the Court’s response to our argument that the porting provision was a ‘game changer’ in giving the employee an interest in what happens to the underlying petition—separate from the petitioning employer—is very gratifying.”

Because this case was resolved by the Second Circuit Court of Appeals, the decision is binding only in the Second Circuit, which includes New York, Connecticut and Vermont. But there is no reason for USCIS to limit the decision’s implementation. Far too often, the immigration agencies apply overly technical rules that lack common sense and that fail to provide a fair process to those trying to navigate a highly complicated system. Now, a court has given USCIS a roadmap for a rational approach to one aspect of its decision making process. One can hope USCIS follows it.

About The Author

Leslie K. Dellon is a Staff Attorney (Business Immigration) at the American Immigration Council where she works to change agency practices that impede the intended use of employment-based visa categories. She encourages business immigration lawyers to consider litigation as another tool to serve their clients, engages in impact litigation and represents amicus curiae before courts and agencies. She has more than 20 years of experience advising small to multinational businesses about immigration strategies. In addition to her extensive business immigration law experience, she previously handled general commercial and corporate matters, including civil litigation. She also was a Trial Attorney in the Federal Programs Branch, Civil Division, U.S. Department of Justice. She is a past Chair of the AILA Washington DC Chapter and has served on AILA National and DC Chapter Committees. Leslie has a J.D. from the George Washington University Law School.